Administrator of North v. Barnum & Rich , 10 Vt. 220 ( 1838 )

The opinion of the Court was delivered by

Redfield, J.

In regard to the deed from John North to Comfort Carpenter, in the year 1794, it no doubt left North standing in the relation of tenant by sufferance to Carpenter. The testimony offered by plaintiff, to show that deed fraudulent, goes no farther than to show that North claimed it to have been fraudulent. The testimony, in relation to Carpenter’s arrest for forgery, is wholly inadmissible. This claim, accompanied with notorious acts of ownership, continued through a succession of years, and Carpenter asserting no claim, would be testimony from which a jury might infer that Carpenter had knowledge that North’s possession was adverse to his, and -in his own right. If so, the statute of limitations would begin to operate, and if Stephen Barnum went into possession of the land, as the administrator of North, and so continued, until the final settlement of the estate, in 1811, the title by the statute of limitations would become perfected in the heirs or estate of North. For it is well settled that a tenant, even, may repudiate his tenancy, and set up an adverse claim in his own right, and if this is made known to the landlord, the term of the statute of limitations begins from that time. Willison v. Watkins, 3 Peters’ R. 43, Greeno v. Munson & Munson, 9 Vt. 37.

We have no hesitation in saying, that Barnum, by becoming the administrator of John North, did preclude himself from acquiring title, in his own right, to any portion of the estate of which North died seized, of which the land in controversy was a portion. And we think that the fact, that he inventoried fifty acres of lot numbered eight, as belonging to that estate, in connexion with the fact, that John North was, at the time of his death, in possession of fifty acres, the south half, and being the land in controversy, goes conclusively- to show, that Barnum did not, at that time, expect or intend to acquire title in his own right. John North levying his execution against Carpenter, upon the north half of the lot, would not show that he intended to look to that land for his redress, instead of the south half; nor would it estop him from disputing Carpenter’s title to this land. The Norths levied, each upon the other’s land, no doubt, in order to avoid the estoppel in law, and at the same time, exhaust any possible title which might be in Carpenter.

The possession of Barnum would be in trust, for those interested in the estate of John North. In that view, title acquired by such possession, or by purchase, would enure for the benefit of the estate. Thus the title derived from Simeon North cannot avail him or his heirs, or their assignees, the defendants, but must enure for the benefit of the estate of John North. And that deed being without consideration, connected with the other circumstances in the transaction above named, will show conclusively, that such was the understanding of the parties at the date of the deed.

It is not necessary to decide on the legality of those levies. They would seem to be incurably defective. The officer’s return not being signed by him, on the original execution, and neither the execution or the return being recorded in the office of the clerk from which it issued, would seem to render the whole proceedings a nullity. But this, as was considered by the court below, is not important.

In the year 1811, when Barnum closed his administration account, the title to the land in controversy had become perfect in the estate of John North. Barnum was then in possession, as trustee for that estate, and, so far as appears from the case, acknowledging the title of the estate.

Whether he has acquired title since that time, does not appear. That after his relation of trustee had ceased, he might acquire title by the statute of limitations, the heirs being of full age, is perhaps consistent with the doctrine of the case of Willison v. Watkins.

Judgment reversed-